Criminal Defense of Immigrants

 

The courts are not authorized to examine the record of conviction where a given statute (or subdivision of a statute) contains only one set of elements, because then the statute is not divisible.[206]  If it is not possible to determine, applying the categorical analysis, whether the nondivisible statute or subdivision triggers removal, the court can go no further.[207]   To do so would mean going beyond the elements of the statute into the facts of the case.  The court must instead apply the minimum conduct analysis to determine whether the full range of conduct punished under the statute falls within the ground of removal.[208]  If not, the conviction does not trigger removal. 

 

                For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon, which was defined to include a range of different weapons, some firearms, some not.  In looking at the essential elements of the crime, as defined by statute, it was not possible to say that the minimum conduct necessary to constitute this offense involves a firearm, since it was perfectly possible to violate it by committing all the elements with a knife or baseball bat.  Under a proper analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means.[209]

 

The courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred. (See U. S. ex rel. Zaffarano v. Corsi, supra; U. S. ex rel. Valenti v. Karnuth, 1 F.Supp. 370 (N. D. N. Y., 1932); U. S. ex rel. Guarino v. Uhl, supra.)[210]

 

The categorical analysis does not consider the facts of the case.  Whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense.  Therefore, a court should not look at the record of conviction under these circumstances to determine the facts of the offense which are not necessary to convict, since they are irrelevant to the categorical analysis.

 

Some courts incorrectly conclude that a statute without subdivisions, and without any disjunctive elements, is “divisible” merely because the single set of elements required to convict embraces both some acts which do, and other acts which do not, trigger removal.  These cases hold that when such a statute has been violated, it is permissible to look to the record of conviction to determine the specific act committed.[211]  This is improper.  The record of conviction cannot add additional elements to the statute that are not in the offense as defined by the Legislature, and the court is precluded from examining facts of the case not necessary to convict, i.e., non-elements, even if they are included in the record of conviction.[212]  See § 16.18, infra.

 

                In some cases, a state statute may contain subdivisions or disjunctive language, but still will not be “divisible” for immigration purposes, because (regardless of the subdivisions) each offense described within the statute clearly falls (or does not fall) within the ground of removal.[213]

 

                Despite this, courts sometimes improperly proceed to examine the record of conviction in making a divisible statute analysis when it is not necessary or permissible to do so.  Two recent cases from the Third and Ninth Circuits are illustrative of this tendency: 

 

                In Stubbs v. Ashcroft,[214] the Third Circuit found that a conviction for child endangerment[215] could not be an aggravated felony sexual abuse of a minor offense.  In doing so, the court correctly noted that the statute included two sets of offenses – causing a child harm on the one hand, and engaging in sexual conduct which would cause a child harm. 

 

The court found that the BIA was correct in engaging in divisible statute analysis, but then found that the first set of elements could never be sexual abuse of a minor because the minimum conduct did not involve sex, and the second set of elements could never constitute sexual abuse of a minor because, applying the minimum conduct analysis, the offense could be committed without the child’s participation in any sexual act.  In other words, although the statute contained two sets of elements, under neither set did the full range of conduct involve sexual abuse of a minor as defined for purposes of the aggravated felony definition (regardless of what was contained in the record of conviction). 

 

                The court erred in its analysis because it should have first determined whether either of the sets of elements could be categorically found to fall within the aggravated felony sexual abuse of a minor definition.  Upon determining the answer was “no,” it should have stopped, without ever looking to the record of conviction.

 

                In Cisneros-Perez v. Gonzales,[216] the Ninth Circuit found that a conviction under California Penal Code § 242, simple battery, could not be found to be a domestic violence offense.[217][218]  In order to do so, however, it improperly examined the record of conviction. 

 

California Penal Code § 242 only has one set of elements – “the willful and unlawful use of force or violence upon the person of another.”[219]  The Ninth Circuit had already held that to qualify as a crime of “domestic” violence, the fact that the victim was domestically related to the defendant must be an element of the crime of conviction.[220]  Therefore, the analysis should have ended upon demonstration that the full range of conduct punishable under Penal Code § 242 does not categorically involve a domestic relationship.

 

The Ninth Circuit’s examination of the record of conviction was arguably justified in this case because the government arguments that dismissed counts and domestic violence counseling ordered by the sentencing judge could be used as evidence from which to infer a domestic relationship.  While the court may have properly felt it needed to reject those arguments, it could have done so by noting that not even a statement in the charge or a factual basis for the plea that proved a domestic relationship would be sufficient, since the statute of conviction simply does not require a domestic relationship to convict.

[206] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).  Cf. Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (“Sexual communication with a minor is inherently wrong and contrary to the accepted rules of morality and the duties owed between persons. The full range of conduct prohibited by section 9.68A.090 of the Revised Code of Washington categorically constitutes a crime involving moral turpitude. Therefore, without proceeding to the modified categorical approach, we conclude that Morales has been convicted of a crime involving moral turpitude . . . .”).

[207] Likewise, where all the possible acts punishable by the statute trigger removal under the ground at issue, there is no need to examine the record of conviction.  See, e.g., United States v. Ladwig, 432 F.3d 1001, 1004 n.7 (9th Cir. Dec. 27, 2005) (“Because the Washington statute is not ‘facially overinclusive,’ that is, because it does not criminalize, as a felony, conduct that is not a ‘violent felony’ under the [Armed Career Criminal Act], we need not address whether [the offense] is a ‘violent felony’ under the modified categorical approach.”); Sutherland v. Reno, 228 F.3d 171, 177 n.5 (2d Cir. 2000) (rejecting petitioner’s argument that BIA was required to look to record of conviction, since court determined that all offenses under the statute of conviction were crimes of violence); Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA 2001) (although statute contained discrete subsections, convictions under all subsections were equally grounds for deportation).

[208] See § 16.8, supra.

[209] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[210] Matter of R, 2 I. & N. Dec. 819, 826-827 (BIA 1947).

[211] See, e.g., Matter of C, 5 I. & N. Dec. 65 (BIA 1953) (Oregon conviction of contributing to the delinquency of a minor held a CMT under a statute broad enough to include acts which did and acts which did not involve moral turpitude, where record of conviction merely stated that the respondent was convicted of the crime of contributing to the delinquency of a minor, but an examination of the information filed against him clearly showed the commission of certain lewd and lascivious acts which involved moral turpitude).

[212] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[213] See, e.g., Matter of Martinez-Recinos, 23 I. & N. Dec. 175, 117 (BIA Oct. 15, 2001) (“Although we agree with the respondent that the statute contains several parts, we find that each of the offenses enumerated in section 118(a) of the California Penal Code constitutes perjury as defined in 18 U.S.C. § 1621, and, thus, is an aggravated felony.  Because all of the parts of the California statute encompass the aggravated felony crime of perjury as defined by the federal statute, we need not look further to the record of conviction.”).

[214] Stubbs v. Ashcroft, 452 F.3d 251 (3d Cir. Jun. 29, 2006).

[215] N.J. Stat. Ann. § 2C:24-4(a).

[216] Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. Jun. 26, 2006).

[217] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[218] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).  See § § 22.9-22.32, infra.

[219] California law has determined that the term “force or violence” is a term of art, meaning only a “harmful or offensive touching.”  People v. Page, 123 Cal.App. 4th 1466, 1473 n.1 (2004).

[220] Tokatly v. Ashcroft, 371 F.3d 613, 624 (9th Cir. Jun. 10, 2004) (“Here, it is undisputed by the government that the pertinent, victim-related testimony Tokatly offered during the second hearing in support of his application for ancillary relief from removal-”even if taken as a true account” of the underlying conduct that gave rise to his prior conviction-was not included in the “elements to which [he] pled guilty.”)  There was no indication in Tokatly that the domestic relationship was somehow an “extra element” that could be examined independently of the elements of the crime of conviction.  See § 16.7, supra.